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What is Shari‘a?
Wael B. Hallaq*

1 INTRODUCTION: CONCEPTUAL DIFFICULTIES
In writing any history of the other, we encounter a profoundly epistemic, and perhaps insoluble, problem of linguistic representation. The problem is derivative of the fundamental quandary that Nietzsche called the “legislation of language”, which establishes “the first laws of truth”, where a “word becomes a concept” having “to fit countless more or less similar cases … which are never equal and thus altogether unequal”.1 This legislation undoubtedly amounts to an enactment of truth through “metaphors, metonyms, and anthropomorphisms” that have been commonly accepted as “fixed, canonical, and binding”, when in fact truths themselves “are metaphors” that represent “the duty to lie according to a fixed convention”.2 The quandary then resides in the originary fact that “every word is a prejudice”.3 Derivatively, as our language (in this particular case, obviously, 21st-century English) is the common but structured repository of ever-changing modern conceptions, modern categories, and, primarily, of the nominal representation of the modern condition, we stand before the wide expanse of the Shari‘a and its history is nearly helpless. Our language fails us in our endeavour to produce a representation of that history, which not only spoke different languages none of which was English (not even in British India), but also articulated itself conceptually, epistemically, morally, socially, culturally, and institutionally in manners and ways utterly different from those material and non-material cultures that produced modernity and its Western linguistic cultures. Take for instance the most central concept in the study of law, the very term “law” itself. Arguably, cultural and conceptual ambiguities related to this term (never to my knowledge identified, let alone problematised, by legal Orientalism) are

* 1 2 3

James McGill Professor in Islamic Law, McGill University. This article is based on the Coulson Memorial Lecture held on 12 March 2007. Nietzsche, “On Truth and Lies in a Nonmoral Sense”, pp. 81, 83. Ibid., p. 84. Nietzsche, Human, All Too Human, p. 323.

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responsible for a thorough and systematic misunderstanding of the most significant features of the so-called “Islamic law”, itself a modernist creation. When looked at in Europe for over a century, “Islamic law” could only disappoint, and in fact was made to disappoint. It could never match any version of European law. It was ineffective, inefficient, even incompetent. It was thought mostly to apply to personal status, having at an early stage “divorced” itself from “state and society”.4 Its penal law was a little more than burlesque, “never had much practical importance”, and was in fact downright “deficient”.5 Of course much of this was colonialist discourse and potent doctrine, cumulatively but programmatically designed to desiccate the Shari‘a and replace it with Western codes and institutions. But linguistics here is not to be marginalised, for if concepts are defined by language, then language is a framework that not only delimits concepts – not a mean achievement – but that also controls them. Prime evidence of this is the routine and widespread statement, often used to introduce “Islamic law” to the uninitiated, that this law does not distinguish between law and morality. The absence of distinction becomes a distinct liability, for when we speak of any law, our paradigmatic and normative stance is that this law must measure up against what we consider to be “our” supreme model. The moral dimension of the Shari‘a, in language and in its conceptual derivation, is thus dismissed as one of the causes which rendered that law inefficient and rigid. The morality that is so enshrined in it introduces an ideal element that distances it from the messiness and disorder of social and political realities. Morality is therefore fated to be dismissed as rhetoric, nothing more. Its adverse effects in the law are cause for lament, but not for analysis, which when attempted in recent studies6 has yielded luminous effects. It turns out that Islamic law’s presumed “failure” to distinguish between law and morality did no less than equip it with efficient, communally based, socially embedded, bottom–top methods of control that earned it remarkably willing obedience and – as another consequence – made it less coercive than any church or imperial law Europe introduced since the fall of the Roman Empire. Thus the very use of the word law is a priori problematic, for to use it is to project, if not superimpose, on the legal culture of Islam notions saturated with the conceptual specificity of nation-state law, a punitive and surveillance-oriented law that by comparison to Islam’s jural forms, lacks (note the reversal)7 the determinant moral imperative. In order for the term “law” to reflect what the Shari‘a stood for and meant, we would be required to effect so many omissions, additions, and qualifications that we would render the term itself largely, if not entirely, useless. The linguistic predicament, which is my point here, is in no way diminished by substituting the term “Shari‘a” for Islamic law, for this word too has been subjected to a new Nietzschean “legislation” that renders it equally, if not at times more, problematic.

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These stereotypes remain tenacious even in recent scholarship. See, e.g., the descriptions in Collins, “Islamisation of Pakistani Law: A Historical Perspective”, pp. 511–584, at 511–522. The words of U. Heyd, one of the foremost scholars on the criminal law of Islam. See his Studies in Old Ottoman Criminal Law, p. 1. See, e.g., Peirce, Morality Tales; Würth, “San‘a Court”. Reversal, i.e. of the ubiquitous Orientalist language that ascribes to Islam and Islamic law a long list of absences (e.g. “Islamic law does not have a general theory of contract”, or “it does not distinguish between law and morality”).

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Incriminated in this terminological-cum-conceptual prevarication is a vast array of language that seems to be overcharged with liminal meanings that are often supremely ideological. Witness, for instance, the standard term describing the legal transmutations that were effected in the Muslim world through direct and indirect European domination. The term of choice is “reform”, redolent of a well-articulated political and ideological position that inherently assumes the Shari‘a to contain deficiencies that need correction and modernizing rectification. “Reform” thus clearly insinuates not only a transition from the pre-modern to the modern, but also passes an un-appealable verdict on an entire history and a legal culture that is perennially wanting and thus deserving of displacement, and – no less – eradication, from memory and the material world, respectively. If the study of “reform” – as a field of academic endeavour – is thus engulfed by these ideological associations, then the scholarly trajectory and agenda can safely be said to have been predetermined. All that needs to be done is to show how “reform”, in its Western inspiration, was parachuted in to rescue Shari‘a’s subjects from the despotisms of their tyrannical jural past and to set them on the path of modernity and democracy. To view “reform” as the most recent stage of Shari‘a’s history is to see that history as organically and structurally ordered in a teleological narrative that had no choice but to produce a particular closure, a particular ending, so to speak, to a drama that has been predetermined from the very beginning of its own history. So much then for a dispassionate study of pre-modern Shari‘a, except as a relic of a dead past that has neither a true genealogy nor a spatiotemporal continuity. No less incriminated in the “legislation of language” is the perduring and ubiquitous adjective “religious”, which is not only inseparable from the epithet “Islamic Law” but is also apodictically and semantically present in its very linguistic structure. “Islamic law” almost never signifies a geography or a material-institutional culture but a religion, a religious culture, a religious law, a religious civilisation, or an irrationality (hence the presumed “irrational nature” of this law). By the rules of linguistic entailment, therefore, the “religious” emerges as oppositional to such concepts as “rationalism” and, more starkly, “secularism”. In other words, the very utterance of the word “religious” speaks of the absence of the secular and the rational. With this essence-based, yet language-driven, conception of “Islamic law”, the emphasis would continue to be on the religious, irrational and un-secular “nature” of “Islamic law”, and much less on how it functioned in social contexts, and what its “religiosity” practically meant to the actors involved in its production, application, and reception. Furthermore, repugnance to religion, especially when seen to be intertwined with law (an anathema to Euro-American lawyers and jurists), undercuts a proper apprehension of the role of morality as a jural form, to name only one effect. Such a predetermined stand vis-à-vis religion and its morality renders inexplicable what is otherwise obvious. The logic and culture of modern capitalism tends to chip away at the centrality of the moral in the pre-modern universe. Historical evidence must thus be shaped to fit what makes sense to us, not what made sense to a “nonrational” pre-capitalist low-level material culture. For an entrenched repugnance to the religious – at least in this case to the “Islamic” in Muslim societies – amounts, in legal terms, to foreclosure on the force of the moral within the realm of the jural. Theistic teleology, eschatology, socially grounded moral gain, status, and many other notions of a similar type, are reduced in importance, if not totally set aside, in favour of other explanations that are more comprehensible within our preferential,

the fiqh of the schools as stated in legal manuals and commentarial compendia. By all indications. representing almost all political platforms. is posited to have actually existed. No-one involved in the debate seemed to know what the Shari‘a was that was being espoused or opposed. have been received less than well. see Eickelman. economic. but an activism whose ideological platform centres on the religious–legal desideratum of restoring the “Shari‘a”. appear to espouse a revival of what they regard as the historical Shari‘a or a modernised version thereof. Some seemed to want to integrate into this reference the Islamic(ised) legislation on personal status adopted in certain Muslim countries.
. the chief reference for both parties to the dispute was. To state that Shari‘a is acquiring a renewed importance is to affirm the obvious. to succumb to the conceptual–linguistic fallacy that we have warned against in the preceding paragraphs. For a summary of his proposed reform. Some reformers in the Muslim world have proposed a new theoretical underpinning for this revival. pp. But this is precisely why there is theory in the first place. 245–254. however. modified (as many would propose) only enough to
8
A radical example is Muhammad Shahrur whose views. most notably Pakistan. but it is. so that nothing more is now required than to restore this practice. Abundant statistics and data from around the Muslim world show a massive majority supporting the implementation of the Shari‘a in one form or another.154
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but distinctly modern. On his thought more generally. together with the affirmation of its renewed importance that will concern me here. I suspect. its capacity to be known and determined from texts.8 But aside from their purely theoretical construction – which is eminently textual – they provided neither for the modalities of realising the project. if there was any. systems of value. at the same time. The recent rise in Western scholarly interest in the Shari‘a merely reflects the upsurge of powerful political activism throughout Muslim lands. moral. none of them remotely clear in terms of make-up. The textual constitution of the law. arguing for the adoption of foundational concepts that bear little. It is precisely the fallacy involved in the very use of this expression. In fact. What is notable about such espousals is that. and probably the rest of the nonMuslim world. despite their many variants. there exists today no single systematic account of what this Shari‘a is and what it should look like. nor for the social. let me return to the foundational concept “Shari‘a”. and cultural parameters that ought to obtain as conditions for the implementation of this project. A particular practice. Australia. see Hallaq. the hallmark of the call by some British Muslims to apply the Shari‘a even in the UK and Europe. if not in North America. History is written according to our “legislated” terms. The majority of writers. as intellectually impressive as they are. features. although the version itself has never been elaborated or even defined. resemblance to their pre-modern counterparts. History of Islamic Legal Theories. “Islamic Liberalism Strikes Back”. if any. political. they seem to possess a perception of pre-modern Shari‘a that makes serious claim to objective knowledge. or character. An expression of this definitional ambiguity is the fierce debate that occurred among Canadian Muslims with regards to introducing Shari‘a tribunals in the Province of Ontario. definition. namely. With these limiting determinants in mind. is. determined by the fiqh. when in theory no-one denies that it is our set of terms that should be subordinated to historiography’s imperatives.

It was a discursive practice in which these relations intersected each other. This discursive practice involved institutions operating upon. cultural. were also the historians. modern. For there is no history without modernity’s decisive and commanding interference. teaching.What is Shari‘a?
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accommodate the exigencies of the modern world. it involved a cultural rendering of law in practice. moral codes. and thinkers who. in that it was transformed – over the past two centuries or so – from a worldly institution and culture to a textuality that not only represents the subtracted differential between the pre-modern organic structure and its entexted version. resisting and/or enhancing each other. physicians. metamorphosing into an organic socio-legal relation that mediates conflict and that. our contention here is that in its present form. It is the chief contention of this essay that the modern uses of the conceptual category of Shari‘a is just that. studying. It cannot be overstated that the Shari‘a originally represented a complex set of social. it involved writing. men of
9 Again. to any possible genealogical counterpart. the Shari‘a distinguishes itself as an entexted entity. and the poets (if not also the chemists. on the one hand.
. Few would see it as an anthropological account of a jural phenomenon. and much else.
2 THE SOCIO-MORAL FOUNDATIONS OF THE SHARI‘A
But what is this modern conception of Shari‘a that we presume here to constitute a metaphor of what its non-modern counterpart was? Specifically.9 and a strategy of resistances against political and other abuses. legal procedure. could not but presuppose. it involved a deeply moral community which law. in its operation. Which is to say that even the surviving residue. it involved a political representation in the name of the “law”. where cultural categories meshed into fiqh. the theologians. but also engages the very characteristic of being entexted in a politics that the pre-modern counterpart did not know. moral or pecuniary occurrence (read: case) becomes a complex site in which law as text merges into custom and social mores. loses its formal juristic connection with the strict demands of the legal text. hence. for it is a truism that the Shari‘a itself was constructed on the assumption that its audience and consumers were. any imagining of a history detached from the condition that is modernity is ontologically inconceivable. it involved an intellectual system in which the jurists and the members of the legal profession were educators. acted upon each other. which is to say in no uncertain terms that such uses are as estranged from the reality of the past – whatever that reality is – precisely to the same extent as modernity has ensured the conversion of the past into an ideological tool. a highly problematic concept. and documenting. in function and substance. functions in such uniquely modern ways that renders the very residue foreign. and astronomers). while on the other. The historical practice is never imagined to be other than what the law-as-text is. and affected each other in countless ways (although how this exactly happened in specific locales awaits multiple micro-studies). economic. where a social. the men of letters. moral communities. “writers”. the entexted form. in the process of such mediation. and moral relations that permeated the epistemic structures of the social and political orders. all along.

The Shari‘a then was not only a judicial system and a legal doctrine whose function was to regulate social relations and resolve disputes. by necessity. “Islamic Law and English Texts”. Its personnel hailed from across all social strata. While in its textual and technical exposition it was.156
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ideas who contributed to the forging of a complex set of relations that at times created. 109–134. the market place or a private residence. the market place and the residential home served. and the many students aspiring to a legal career played a similar role. economic and social. The intersection of the legal with the communal and the religious was a marker of populism and communitarianism. and so it created complex relations between the Shari‘a and the larger spiritual and intellectual orders in which. of an elitist tenor. and textual and poetic. “Model Shurut Works”. but a discursive practice that structurally and organically tied itself to the world around it in ways that were vertical and horizontal. namely. the esoterically pantheistic and the “rationally” philosophical. a private scholar who drafted legal documents for a fee. while being the sum total of these relations. perforce.
10 Hallaq. and when this was not the case. p. a multiplicity of other social and religious–communal functions.
.11 The Shari‘a. Unlike the modern government office. From minor experts to major legal scholars. to one degree or another. The notary (shuruti). The qadi’s court.36. the Shari‘a distinguished itself from modern law in another. Yet. moral and ethical. below. structural and linear. or any institutional approval for admission. among much else. intellectual and spiritual. To begin with. it lived and functioned. as well as the professor’s classroom and the mufti’s assembly. So was the marker of legal knowledge. the entire gamut of “classes” and social strata. mutatis mutandis. legal education was informal and accessible to all interested individuals. crucially different way. required no formal application. and cultivated itself within. whose commentary on Islamic justice was otherwise negative. was the yard of the mosque. See Strawson. where legal education took place. “Notariat”. and alongside which.10 But it was the mufti who perhaps more than anyone else contributed to the spread of legal knowledge among the masses. also provided advice and expertise in nearly every corner and street in Muslim towns and cities. and operated and functioned within communal and popular spaces. it involved the regulation of agricultural and mercantile economies that constituted the vehicle for the maintenance of material and cultural lives that spanned. among non-professionals. 34. or conduced in the creation of. epistemic and cultural. the very social order which it came to serve in the first place. 11 This “free legal advice” was noted by early colonialist officers in India. The theological substrate encompassed the mundanely mystical. The neighbourhood imams who spoke of religious matters and who delivered the Friday sermons were agencies of popularising law. very little else in it was elitist. the mosque. The halaqa. muftis were routinely accessible to the masses. see also Tyan. it involved a theological substrate that coloured and directed much of the world-view of the population whose inner spiritual lives and relationships were in daily touch with the law. free of charge or nearly so. examination. This permitted the curious and the interested to “sit in”. which one does not enter unless obliged to settle an official matter (for it has no other function in the first place). political truth and ideology while at other times confronting power with its own truth. and n. which could scarcely have been more widespread across the entire range of the social order. thereby contributing to the spread of legal knowledge. that it originated from.

p. and all that is productive of life’s network of social obligations. integrity. therefore. enmeshed in its various versions with local customs and practices. Middle East. On the doctrinal level. Thus. some of them were prominent jurists and provincial magnates. most notably the witnesses and the court examiners. a way of life. the shared communal values of honour.What is Shari‘a?
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and to some extent Sufism. To lie means in effect to lose these ties and. their attestation at the end of each record summing up the case. 13 Ibid. “Qadi’s Diwan (Sijill)”. because the credibility of testimony itself – the bedrock of adjudication – would cease to be both testable and demonstrable. and social ties. The function of witnesses would be rendered impossible without local knowledge of existing customs. these witnesses functioned as community inspectors of the court’s business. 112.12 Although witnesses. 14 Hallaq. Just as the qadi’s primary concern in recruiting witnesses for the court was the quality of moral integrity. Morality Tales. legal doctrine (fiqh) guided and promoted. moral values. in turn. shame. p. It was. he was constituted – by the very nature of his function – as the interpretive agency through which the fiqh was mediated and made to serve the imperatives of social harmony. p. to lose social prestige. particularly the lower strata. defined the cultures in all regions where it was substantially introduced. giving it the status of paradigmatic cultural knowledge. court proceedings in each and every one of the cases heard by the court13 but also a depository of communal memory that assured the present and future public access to the history of the case. Some of these witnesses were officials of the court. pp. ensuring the moral integrity of its procedures.14 In many ways. Much of the work of the court related to the investigation not only of events but also. some relatives of the litigants. just as their counterparts. whereas others were no more than mere bystanders who happened to be present on account of another matter. it was the concern of these witnesses to assess the moral worth of people involved in litigation. not only because knowledge of others would be inadequate and insufficient. 97. but did not superimpose itself upon social morality. Marcus.
. and perhaps more importantly. As an aggregate act. too. Because the qadi was an immediate product of his own social and moral universe. 415–436. Impossible. other witnesses who accompanied the litigants obviously represented the entire spectrum of social classes in the larger population. of the integrity and rectitude of the persons involved in litigation or in a given set of events. Procedurally. retained and paid by the court. and a check on. the work of the court appealed to pre-capitalist and non-bureaucratic social constructions of probity and moral rectitude that directly derived from the immediate local site of social practice. but. The qadi was not the only socially linked official in the court. hailed usually from the higher social classes. which required two or more witnesses’ signatures. amounted not only to a communal approval of. the court’s legal experts (ahl al-‘ilm). honour. Yet another marker of a socially engaged court was the very act of evidential attestation to the court’s minutes.
12 Peirce. and religio-social virtue entered the court’s arena as part of a dialectic with the assumptions of fiqh. Rectitude and trustworthiness – themselves the foundations of testimony – constitute the personal moral investment in social ties.. more importantly. All other functionaries shared the same social and moral landscape. ensured the soundness of applicable law. 112.

non-Muslims versus Muslims. It is now unquestionable that the living and lived tradition continued to flourish. particularly since lower-ranking judges often also shared a similar social background with the scribes. according to capacity.”15 Furthermore. 18 Marcus. it was not entirely the virtue of the court and qadi alone that rendered this gap non-existent. and society and politics on the other. They spoke informally. 106. Yet. and commoners versus the economic and political elite. That they won the great majority of cases and that they found in the court a defender of their rights is equally a forgone conclusion. That those who initiated litigation in the court were the social underdogs is now certainly beyond debate.158
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Like judges and witnesses. His ties to the community enhanced the already strong connections between the court and the surrounding population. 111–113.18 Their counsels were not lawyers who spoke a different. and employed the discursive and rhetorical techniques that. But the spread of legal ethics and legal knowledge in the social order was
15 Agmon. State. for these constituted the religious foundations and codes of social praxis. and that society is the carrier of this tradition. traditional Muslim society was as much embedded in a shar‘i system of legal values as the court was embedded in the moral universe of society. a fact that explains why they won the great majority of cases when they happened to be plaintiffs. that no gulf existed between the court as a legal institution and the consumers of the law. which has become estranged from the legal profession in multiple ways. the scribe of the court was invariably a member of the local community and himself a jurist of some sort. their counsels on the technical and more difficult points of law were the largely free-of-charge muftis whose opinion the court took very seriously. To say that law in pre-modern Muslim societies was a living and lived tradition. nor were they higher-class professionals who demanded exorbitant fees that would have made litigation and recovery of rights as expensive as the litigated object. is merely to state the obvious. incomprehensible language. Unlike modern society. Middle East. Society. The scribe. on the one hand. As one scholar aptly noted: “[J]udges and scribes seem to have developed an interdependency that sustained their cooperation. 17 It is in this context that a major revision of the Schachtian school can be made.17 The social underdogs thus knew what their rights were before approaching the court. by virtue of his role. That law continued to be a living and lived tradition. although it was often the case that senior scribes functioned as deputy-qadis. They were women versus men. even disorderly. each could muster. are propositions that were dismissed out of hand. That they could do so was testimony to a remarkable feature of Muslim justice. Instead. was indeed instrumental in preserving the relationships of social and epistemic continuity between court and society. see his Origins. for credit must equally be given to these very consumers. a tradition that lost momentum and seemed to disappear with the disjunction that occurred between law. 56–57. with an ever-increasing force. For Schacht. “Social Biography”. centuries after the formative period of Islam. however economically impoverished or educationally disadvantaged the latter were.
. Schacht and his followers accept the historicity of a “living tradition” during the second/eighth century. 139. It was a salient feature of that society that it lived legal ethics and legal morality. namely. pp. the consumers of law and of the court’s services were themselves the loci of the moral universe. p.16 They appeared before the qadi without ceremony and presented their cases without professional mediation. 16 Gerber. pp.

that it was generated at the very social level at which it was applied. one feeding on and. From a grass-root system that took form and operated within the social universe and. muftis great and small. within the moral community. when the common folk appeared before the court. walking in the street or shopping at the market. three. sustaining the other.. Function of Documents. more importantly. the Muslim court was eminently the product of the very moral community which it served and in the bosom of which it functioned. the law of the modern nation-state (however democratically representative of the “people’s interests”) is superimposed from the centre in a downward direction. tax-payers. transmitted from one generation to the next. Having been a legal as well as a social institution. or even a dozen opinions. economically productive agents.19 Fiqh and social morality. in Wakin. a doctrine and an extensive practice. Tahawi’s comments on the accessibility of legal documents (shurut) to the average person..
. “Every master-jurist (mujtahid) is correct” was at once a maxim. While this staggering plurality is a cardinal feature of fiqh. To this pre-modern absence and its diametrical obtrusiveness in the modern era we shall return later. giving rise to an extreme version of “jurists’ law”. the Shari‘a as law and culture travelled upward with diminishing velocity to affect. those individuals who are harnessed as national citizens (fathers and mothers in the nation’s families. etc. the Shari‘a developed a unique way of textually dealing with the world (indeed. as a substantive and jural system. It is well known that Islamic jurisprudence was highly individualistic.g.What is Shari‘a?
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also the function of a cumulative tradition. 10–29. pp. and the law as ideology and doctrine required that they be so. with several grades of each in between. in varying degrees and forms. soldiers. Thus. were two sides of the same coin. at the same time. they spoke a “legal” language as perfectly comprehensible to the judge as the judge’s vernacular “moral” language was comprehensible to them. only one of multiple ways of dealing with the world). with the clear understanding that epistemology did not operate for its own sake but functioned as both the mechanism and yardstick of rationalising the mundane and not-so-mundane exigencies of social existence. Self-rule is thus a marker of the state’s absence – a situation almost inconceivable in this day and age. Each case had two. The jurists emanated from the very society and culture that they served. first originating by the mighty powers of state apparatus and thereafter being deployed – in a highly structured but deliberately descending movement – to the individuals of the social order. and enhanced at every turn by the vibrant participation of aspiring law students. each espoused by a different jurist and each was located on a spectrum ranging from the norm of permission to that of prohibition. and imams. if they could be at all separated. In sharp contradistinction.) It is a virtual truism that a society operating by the legal and cultural norms of the Shari‘a was one that was largely self-governing. e.
19 See. It was one of the most striking features of the Shari‘a. Different opinions on a single issue were to be pitted against each other in an effort to determine which of them was epistemologically the soundest or the weightiest. and by the occasional advice that judges and other learned persons gave while visiting acquaintances. Integral to its being socially based. the usul system managed to develop juristic mechanisms and strategies that could effectively deal with this multiplicity. and communally and morally embedded. the modus operandi of the minimal “state” (if the captioned term is fit for use at all).

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Notwithstanding all efforts to minimise plurality. and to be just. 21 In the Turkish-Ottoman tradition. it must also be noted in this context.23 that the initial operation of the legal system began. and the social and physical world on the other. For. For the less studied Malay world. because we have determined that it is a law court. and reflects the deep-rooted perception. This pluralism. In speaking of “legal system”. see the important works of Sadka. Secondly. The legal maxim “amicable settlement is the best verdict” (al-sulh sayyid al-ahkam)21 has a long-standing tradition in Islamic societies and in the Shari‘a.25. A blind justice was no more to be trusted as a judge than a blind person as a witness to an event. fulfilled any particular set of functions meeting our definition of “law”). pp.g. a mechanism. The pluralism of the fiqh was not only a hermeneutical expression of the divine will. stood in sharp contrast with the spirit of codification. and Peletz. What went on outside the court and prior to bringing litigation before it were stages of conflict resolution that should be considered just as significant to the operation of the legal system as any court process. It was within these groups. From this perspective. and a process that was created for the social order by the very order itself. an infusion where the method of realisation was not imposition but rather mediation. that mediation is not only integral to the legal system and the legal process but also accorded precedence over court litigation. Gulliver (Ed. below.22 This is particularly true in closely knit social structures where groups tended to manage conflicts before they were brought before a wider public forum. the various discussions in P. Morality Tales. Some anthropologists have rightly argued that the fundamental distinction between mediation/arbitration and adjudication is the distinct absence from the
20 See. a discrete goal of fiqh was the infusion of legal norms within a given social and moral order. in the first place.. Shari‘a’s fiqh was incontrovertibly pluralistic: this is simply one of its most essential features. 264. it provided an intellectual superstructure that positioned the law within the larger tradition that conceptually defined Islam. see the multiple sources below. 186.H. A blind justice was no justice. 22 Also see the closing lines of n. and it was through the continued involvement of such groups that the Muslim court was able to accomplish its task of conflict resolution. as we noted.
.20 it would be neither sufficient nor exhaustive to dwell on the law court as the exclusive vehicle of conflict resolution (nor is it useful. for people are never truly the same. 1978). mainly the law court. 23 For the Mediterranean region. e. the fiqh operated in a dual capacity: first. the law could not treat them as a generic entity. p. then. as several legal anthropologists have asserted. the prevailing maxim appears to have been “al-sulh khayr” (amicable settlement is a good work). See Peirce. it was inconceivable for the Muslim court in particular to process claims regarding disputes without due consideration of the moral sensibilities and communal complexities of the social site from within which a dispute had arisen. Pluralism was thus a marker of a strong sense of judicial relativism. where a blindfolded Lady of Justice has no place whatsoever. Brill. 49–50. to presuppose that the Islamic law court. thereby constituting a theoretical link between metaphysics and theology on the one hand. both legal and social. from Malaya to Morocco. p. Islamic Modern. Protected Malay States. but also a system.J. Cross-Examinations: Essays in Memory of Max Gluckman (Leiden: E. another modern means of homogenising the law and thus the subject population. which was usually seen as the last resort.

Nor does it entirely support the rigid distinction between the roles of judges and arbitrators. Yet. for example. the Muslim judge was faced with black-andwhite juristic options. In modern-state criminal systems. where. “Administration of Courts”. no negotiation or mediation is possible. For mediators/arbitrators are usually third parties who. Court records from the Ottoman period are replete with references to cases that were terminated prior to the rendering of a court decision because the mediators (muslihun) intervened and reconciled differences. which avoids the all-or-nothing solution at any cost. The importance of compromise in the judicial process can be more readily assessed by the degree to which compromise is institutionalised than by the percentage of court compromise decisions. [. pp. are inclined to the all-or-nothing approach. in a tribal (and in this case. p. On the other hand. option available is that of all-or-nothing. are invariably inclined toward flexibility by virtue of the fact that each party is dependent on the other for obtaining a positive outcome. It is true that. if not only. 42. Judges “use their personal authority to reconcile the parties. 387. p. in some cases. or reconcile husbands and wives. 26 A practice highly commended by fiqh works. because they possess the power of decision making. “Process and Decision”. if not the great majority of cases. oftentimes played the exclusive role of a mediator in cases that were not of a strictly legal nature. where blood-money was often substitutable for retaliation. 14. the main. arbitration/mediation is rendered feasible by virtue of the possibility of settlement by monetary payment. whether through the litigant’s own efforts or the efforts of intermediaries. and not totally incompatible. furthermore. Thus. . pp. but he listened to the problems between. El-Nahal. Kitab Adab al-Qada’. 463).25 The qadi.What is Shari‘a?
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former of any authoritative decision making (a fact that also distinguishes tribal forms of arbitration from those that exist today in modernised legal systems. Ibn Abi al-Damm. Morality Tales. the successful result of his mediation often acquired a social meaning of judgment. in so far as judges.27
24 Gulliver. . arbitration is a priori precluded. furthermore. 33. 25 This aspect still survives even in modern Shari‘a courts. “Islamic Court”. Frequently . because they lack a decision-making competence. and adjudication becomes inevitable.. brothers who might need no more than an outsider’s opinion. Thus litigation itself does not contradict the goal of compromise” (Antoun.] The aim is to give reconciliation.g. At least in one important respect. the lines of demarcation between tribal arbitration and mediation were not as clear). . But in many.24 Arbitration thus becomes a viable option if the interests of the two parties are partially overlapping. See. Peirce. the aim of the litigants is not to receive a judgment from the court but rather to effect a compromise back in the village guest house. and this is precisely where mediation has no reason to arise in the first place.
. a possibility enhanced by the mutual desire to avoid both further costly feuding and non-compensable loss. p. Drawing on his study of a Jordanian court. and adjudication left as the only resort. e. 54. the force of judgment. another significant feature of mediation/arbitration is the win-some-lose-some mode of conflict resolution. simply using the Islamic court as one more recourse toward that end.26 Not only did he arbitrate disputes. 186. 27 Hanna. Richard Antoun observes that the judge’s role as an agent of reconciliation is institutionalised in the ideology of the court and its procedure. for the penalty must be meted out. When the latter mode presents itself as the only option. Islamic) system. the qadi or his representatives would have been acting in an adjudicatory-cum-mediatory role. . A typical example is homicide. evidence from the world of Islamic legal practice does not support the anthropological observation that at the level of adjudication.

however. often attempting to resolve conflicts in full view of the set of present and future social relationships of disputants. No facts can be determined by the court without reference to what I here call social biography. if not more.32 The Muslim adjudicatory process. certainly not without allowing the full range of social biography to come before the eye and discourse of the court. p. Al-Husam al-Shahid. pp. 19-20. p. the Muslim court was embedded in a social fabric that demanded a moral logic of social equity rather than the logic of winner-takes-all resolutions. Like the arbitrative process.28 Like arbitrators. Nor does the qadi’s adjudication allow for a narrow application of legal doctrine. applicable to the overall history of Islamic court justice:
The predominant goal of the [Islamic] law is not simply to resolve differences but to put people back into a position where they can. p. pp. 39–40. the terms by which the courts proceed.” whereby judges cared less for the application of a logically consistent legal doctrine or principle than for the
Judicial Administration. 42. Rosen. See also Antoun.30 Such a judicial act requires the qadi to be familiar with. to qualify for service. but unlike modern judges. “Process and Decision”. “Islamic Court”. “Process and Decision”. as several Shari‘a judges have told me. Putting parties back into the social roles they enjoyed before appearing in court required social and moral compromise. both a specific and specialised social unit that has been carved out of society at large is accurately captured in the centuries-long and highly recurrent prescription that a qadi.29 the qadi tries. Nearly everything else was subject to what one perceptive commentator labelled “separate justices. p.31
That the Muslim court is. was therefore never remote from the social world of the disputants. 72–77. Gerber. the history of interactions between the disputants. p. Rosen’s apt description of modern-day Morocco is equally. see Gulliver. “Justice in Islamic Culture”. the concepts they employ. and ready to investigate. Total loss was avoided wherever possible. Cultural Anthropology. Sharh.. As Gluckman and Rosen have observed – in two different cultural contexts from the present day – judges invariably seek to unravel the wider relational context of the litigating parties.162
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More important. 463. 16–19. For Max Gluckman. wherever possible. with the least adverse implications for the social order. Rosen. and was usually allowed only when the culprit caused an irremediable or serious breach of social harmony and the moral code. continue to negotiate their own arrangements with one another. even though the specific content of a court’s knowledge about particular individuals may be both limited and stereotypical. the styles of speech by which testimony is shaped. and the forms of remedy they apply are broadly similar to those that people use in their everyday lives and possess little of the strange formality or professionalised distortions found in some other systems of law. State. pp. pp. 20 ff. where each party was allowed to retain a partial gain. which comprises data relative to the litigant as a socially constituted entity. This “non-legal” involvement continues to flourish in today’s Middle Eastern societies. inter alia. was the social context in which the qadi and his court were positioned. Society. . 51. must be intimately familiar with the cultural text of his jurisdiction and the register of social customs and habits prevailing therein. Gulliver. 46. . Haviland. . Anthropology of Justice.
28 29 30 31 32
. 331. with its fiqh. to prevent the collapse of relationships so as to maintain a social reality in which the litigating parties can continue to live together amicably.

33 But even when this was not possible. and a legal (read: fiqhi) malleability that is deliberately and subtly attuned. its modus operandi. if not be. And it was this social order that defined not only the function of the court but its identity. the death of this social order will entail the death of that type of court. This amounted to a moral exoneration that could. and it rendered indispensable a high degree of attentiveness to the morality of the weak and underprivileged. But predicating the maintenance of the social order on the universal and “ecological” balance of a moral system posed for the court a challenge. women. Like so much else before the rise of Western European modernity. morality was the lot and natural right of everyone:34 the poor. the rich. 34 This is my description. It was particularly its open and informal set-up that permitted plaintiff and defendant from the same micro-community to argue their cases and special circumstances from a moral perspective. Morality Tales. 387. namely. For although the jural punishment here may have been inevitable. admittedly projecting modern categories onto pre-modern realities. Such a collective and public expression permitted even the loser to retain a measure of dignity. neighbours. in the community’s imagination. Social equity. for by virtue of the informal nature of the Muslim court. even its raison d’être. But it was also the commitment to universal principles of law and justice that created a legal culture wherein everyone expected that injustices against the weak would be redressed and the wrongdoing of the powerful would be curbed. and to state my point even more forcefully. In other words. having had the opportunity to explain and justify the compelling circumstances under which wrongdoing had to take place. While cleavages. The question to be asked therefore is not why it did not arise in Afro-Asian civilisations but why it arose in Europe in the first place?
. The language of natural rights as we understand it today never existed in Islam. his relations (who are both the moral extension and moral predicate of the culprit and who must resume their lives in the community following a trial) able to retain at least a modicum of moral worth sufficient to reinstate them in the normative and morally structured social world. no less. p. to the entire system of social and economic cleavages. the circumstantial compulsion under which the wrongdoing occurred left the loser and. slaves. no less in fact than that allowed to the rich and mighty. religious minorities and. Yet. the unquestionable mission of the court. the parties and their relatives. by the nature of its own social make-up. defending the honour and reputation of one litigant or the other. it had no reason to arise in other cultures. border on the legal. the preservation of social order and harmony. the moral foundations of such a reinstatement constituted the means by which the court – with its socially oriented structure – fulfilled one of its chief tasks.What is Shari‘a?
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creation of a compromise that left the disputants able to resume their previous relationships in the community and/or their lives as they had been lived before the dispute began. The task of preserving social order presupposed a court. existed and constantly asserted themselves. and thus class and other prerogatives. As the former undoubtedly saw themselves as equal members of the moral community. particularly. indeed. the wrongdoer was also granted a partial recovery of his moral personhood. more attentive to their redresses. and friends were allowed to air their views in full and without constraint. This was an expectation based on a centuries-long proven practice where peasants
33 Peirce. men. and even when the victim recovered all damages. the court had to accord them the same kind of treatment it accorded the latter. was thus defined in moral terms.

And when fiqh was restrictive toward them. p. Considerable recent research has demonstrably shown that this group received not only fair treatment in court but also greater protection than other groups. 272. So too were lawyers and the excessive costs of litigation that inhibit the weak and the poor from pressing their rights. 7. and yet even here the qadis. “Women in Early 17th Century”. to litigating pecuniary and other transactions. were all understood and accommodated in the law court. Mitchell. “Family Law in Algeria”. Morality Tales. because “slow. 84. ZarinebafShahr.38 From unrestricted accessibility to the court. “Women in Early 17th Century”.. The female moral code and sanctity.36 The Muslim court succeeded precisely where the modern Western court fails.
.40 Protected by a moral sense of honour and sanctity. The analogy with natural ecology is pre-eminent. 112. on the other. 218. Peirce. benefiting from a centuries-long tradition of moral and socio-legal praxis. A case in point is women. 201–202. where the general objective of both the Shari’a and “King’s law” is said to be effective and short trials. That the court was embedded in both society and social morality is attested to by the very nature of the court’s social constitution on the one hand. The virtue of this practice (especially when contrasted with the lengthy and costly litigation in the United States and other Western countries) has recently been celebrated in a new codification in Saudi Arabia. with few exceptions. p. understood that no social order and its prerequisite of moral “ecology”42 could be maintained without an equitable justice. they asserted their rights and privileges within the court as well as without it. who were shuffled every two
35 Marcus. p. Morality Tales. 111. 61–62. See Hejailan. pp. pp. “Saudi Arabia”. p. 106. against men and against other women. 39 See Marcus. 38 Hirsch. 98. The qadi himself was typically a creature of the very culture in which he adjudicated disputes. p. namely. 40 Peirce.41 For the latter. See also sources cited in the preceding two notes. where a high degree of predictability is predicated upon the ways the “moral system” functions and where any fundamental alteration in any part of the moral site will change the “ecological” balance of that site. Middle East. 36 Ibid. One of these was the Ottoman realm. The highly formalised processes of the modern court and its structure of legal representation (costly and tending to suppress the individual voice of the litigants. a practice that pervaded the entire Muslim world. 176. in providing a sanctified refuge within whose precincts the wretched of the earth could win against the most powerful and affluent. Speedy and free-of-charge court hearings is a feature of the recent Shari’a Procedural Law (1421/1999–2000). pp. and by the legalmindedness of the society the court was designed to serve. Law”. 37 Jennings. men. 41 Jennings. p. p. dilatory and expensive justice is a form of injustice”. p. were unknown to the Shari’a court.39 and argued as loudly as.37 a tradition that survives in some Muslim societies even today.164
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almost always won over their oppressive overlords. women asserted themselves in the legal arena in massive numbers. “Women. and the strategies that were developed in response to (what we now regard as) the restrictions of legal doctrine. they developed strategies in response. where Jews and Christians often prevailed in court not only over their Muslim partners in business and neighbours but also against no less powerful figures than the provincial governor himself. 42 By “moral ecology” I mean that socially based order of moral organisation and structured moral functioning. let alone their sense of morality). 61–62. Middle East. “Kadhi’s Courts”. 112.35 The Muslim court thus afforded a sort of public arena for anyone who chose to utilise that space and its fiqh for his or her defence. if not louder than.

The qadi’s accommodation of the litigants as part of larger social relations was neither the purely customary mode of negotiation (prevailing in the pre-trial stage) nor the black-and-white. the fiqh is also silent on a variety of other real world aspects with which it commonly dealt: in contracts. as the
43 Hanna. mostly as plaintiffs. yielded results quite at variance with the letter of the fiqh. On the basis of court records and biographical data. the fiqh law seems arbitrary. but also qadis/hakims). not strictly in legalistic terms. It is crucially important to note however. all-or-nothing approach (mostly prevailing in systems where the judge is socially remote from the disputants). “Standing at the Gates of Justice”. is the family law of talaq (divorce). In modern judicial systems. Litigants were captured in time. 42. did not always themselves adjudicate disputes in their jurisdictions. but left this task mostly to their local and native deputies (known as na’ibs. 45 Seng. complex financial and commercial assumptions enter into the application of the fiqh in the judicial world. capricious. Every case was considered on its own terms. definite conception of what has actually taken place and upon a single interpretation of legal norms” (emphasis mine). p. 44 Gulliver.45 In each case. of particular relevance to our modern concerns. the qadi mediated a dialectic between. As a text. that the fiqh. “Process and Decision”. 51. deceptively appears devoid of any assumption about the existence of such morally grounded relations. If mediation offered an opportunity to achieve social equity and preserve the individual’s sense of morality. on the other. Yet another prominent example. for instance. But the fiqh was interpreted – if not articulated and elaborated since its early formation – in light of particular social facts that. when the world of judicial practice could not in fact have operated outside of such an assumption. structures and relations that informed and were informed by each litigant. but are entirely absent from the chapters on sale.
. it in fact encouraged it. and defined by its own social context. which in turn recognised the supremacy of the unwritten codes of morality and morally grounded social relations. “Administration of Courts”.What is Shari‘a?
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years or so from one province to another. Gulliver observes. Talaq. as a text. the documented extensive presence of women in court. the social and moral imperatives – of which he was a participant – and. which barely discloses the complex social and family relations that affected the application of that law. And the fiqh repertoire not only allowed for attention to particular cases as unique events. the demands of the fiqh. but as integral parts of larger social units. attests to the advantageous position they enjoyed within the judicial system. 50. p. He operated within established modes of mediation that preceded and defined his professional involvement.43 Embedded in the moral fabric of social relations. 202. the same is true of the fiqh of waqf. once factored in. read as a text. pp. and downright oppressive. “all or nothing is a characteristic feature of the ordinary judicial method. Read as a text. the qadi could have no interest but the preservation of these relations. the decision is based upon a single. An action is proven and sustained or not proven and dismissed… [The] verdict of the court has an either/or character.44 Instead. salam and other contracts with which the fiqh abounds. we are able to determine that in many regions of the Islamic world extensive litigation took place about property in the context of lapsed talaq payments and inheritance settlements. the qadi had to absorb these imperatives into his court and accommodate them within a normative legal framework. on the one hand.

272. jewellery and at times cash. which explains why they were a source of funding for many husbands and why so many of them. But more financially significant was the trousseau that she received from her parents. Whatever the form of the trousseau and the total wealth they could accumulate. 70.g.000 gold dinars. the socio-legal function of the trousseau is mentioned or even alluded to in the fiqh.50 and explains – in this context – three significant features of the Muslim approach to
46 Zilfi. any debts the husband incurred to her during the marriage (a relatively frequent occurrence). Anatolia. Money and Divorce. Ivanova. and as legal practice testifies.C.46 was a very costly financial enterprise for the husband. p. but could instead be saved. invested and augmented.
. in the historical record. children’s maintenance. Marriage. “We don’t Get Along”. “Women in the Early 17th Century. Marcus. Money and Divorce. Tucker. e. for Aleppine women money-lenders whose customers often included their own husbands. Syria.) Many women. they frequently did so with a fair amount of capital. Peirce. shelter and clothing (which could be considerable if the husband was prosperous) were entirely his responsibility. 50 Rapoport. 49 On the size of many a trousseau. See also R. the wife was entitled to maintenance for at least three months (‘idda). Middle East.166
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jurists understood very well. 4.48 In addition to the immediate dower and the financial and material guarantees for her livelihood. 205–206. Jennings. p. “Revisiting Reform”. pp. and understood well that they were under no obligation to spend any portion of it on others or even on themselves. “Divorce in the Ottoman Shari‘a Courts”. see Rapoport.. pp. women were entirely aware of their exclusive right to this wealth. and Palestine has been duly noted by historians. this being explicable by the fact that it did not play a contractual role. And if the husband had not been consistent in paying for his marital obligations (also a relatively frequent occurrence). clothing. Marriage. a fortiori. delayed dower. since such expenses as pertained to sustenance. Zilfi. a fee for nursing. pp. Egypt. 145. customarily consisting of her share of inheritance paid in the form of furniture. 48 See Marcus. “We Don’t Get Along”. and sources cited in n. Upon talaq. The relative frequency of the latter in Istanbul. Jennings. pp. talaq appears to be less common than khul‘. not hers. 269–271. p. 97–101. were also endowed with a waqf portion. “Divorce between Zubaida”. 12–22. giving them further income. Muslim Cyprus. the property of wives was not subject to the chipping effect of expenditure. but also that of women engaged in the business of money-lending at interest. p. In this context. 157. unlike that of husbands. it must be clear that when women entered marriage. p. the wife secured a postponed payment. 82–87. let alone the fact that in many cases it was effectively ruinous for him. Rapoport. relatively speaking. idem. “Women in the Early 17th Century”. Marriage.47 and if the children were young. Money and Divorce. They apparently spent their own money on themselves only if they chose to do so. Considering the unassailability over the centuries of these rights – which on balance availed women of property accumulation – it is not surprising that. the contractual dissolution of marriage. See sources in previous and next note. he would owe the total sum due upon the initiation of his talaq. engaged in the lucrative business of money-lending in the first place. “Men. but one that she could retrieve at any time she wished (unless otherwise stipulated in the contract). before or during marriage. 47 The practice of husbands borrowing from their wives was frequent. pp. Women and Property”.49 (It is notable that neither the presence nor. “She is Trouble”. a sultan’s manumitted slave-girl commanded a trousseau worth 100. In other words.22 therein.

playing by its own rules. political. the implication being no different from that reached by classical Orientalism about the divorce between the Shari‘a and social and political realities. Recent research. talaq may appear in the fiqh text to be an unrestrained prerogative. there was also the “price” that he paid for this prerogative. was in a sense not so much a depletion of the woman’s property as a concession on the part of the woman of privileges due to her.53 But this mirroring in the fiqh text is the exception that proves the rule. Attributing to fiqh roles of control and management is a distinctly modern misconception. nor did it ever constitute a totalising statement of the law in practice. a “law” now hotly debated in human rights discourse. Indeed. in its realisation within a social environment. while talaq was the unilateral prerogative of the husband. 276. 54 A similar point is made by Zilfi. Women and Property”. V: 693. 53 Nawawi. 55 Al-Qattan. pp. coupled with legal and moral deterrents instilled by jurisprudential doctrine and social norms to boot. especially that of Najwa al-Qattan. khul‘.55 This has led to the conclusion that judges did not care to apply strictly the legal doctrine of fiqh. While this may be true. where Christians and Jews seem to have enjoyed jural rights above and beyond those prescribed by the fiqh.e. 52 Zilfi. But. talaq in effect also amounted to a unidirectional transfer of property from the husband to the wife. The point remains that it is the very financial promise made by the wedding husband (i. which is “axiomatic in the contemporary world”.What is Shari‘a?
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terminating a marriage. “Litigants and Neighbors”.. Secondly. within the economic equation of Muslim marriages. uncharacteristically. the evidence of the two cases in support of her argument is. khul‘ divorcees “could not have been better off economically immediately upon divorce” (p. too speculative and severely lacking in detail to be persuasive. In other words. This misconception perhaps also
51 Marcus. but for most divorcing husbands this prerogative was constrained in practice by hefty financial deterrents. Zilfi does not argue that 18th-century marital dissolution necessarily resulted in reducing the economic status of women. “Dhimmis in the Muslim Court”.51 Thirdly. etc. has shown a seeming disparity between the “law” of the fiqh and practices on the ground. in other words was a discursive practice on its own. delayed dower) and the financial guarantees he makes for the three months of the ‘idda maintenance that are used as the bargaining chip for khul‘. p. funnelling the talaq payment due to them toward such a purchase. 155. First. not the other way around. nor managing or controlling society as modern law does as a matter of necessity.54 Almost every branch of fiqh manifests a dialectic similar to the talaq example discussed above. neither engaged in transforming reality. Rawda. although the dialectic may involve an altogether different variable – social. So typical was it that the juristic manuals reflected this practice as a normative doctrine. p. who petitioned the court to dissolve her marriage by a khul‘ – which cost her her delayed dower plus her waiting period allowance52 – was an extraordinarily typical one. an important effect of this transfer is the fact that many repudiated women purchased the husband’s share in the matrimonial house. idem. beyond and above all that he was – for the duration of the marriage – obliged to provide his wife by default. a back-projection of our notions of law as a state vehicle for social engineering. The case of Ayse. she says. moral. “Men.
. material. 295. “We Don’t Get Along”. “We Don’t Get Along”. Another case in point is the much-discussed “law” of religious minorities. The fiqh. But the fiqh never was “the law” in its full range. 284. 284).

jurists whose claim to authority was primarily epistemic. tanqih) of the school doctrine. Kitab Adab al-Qada’. requiring ijtihad that was context-specific. and. for individuals were not seen as equal to each other. did not constitute law in the sense modernity forces us to understand either “law” or “case law”. see Hallaq. the law was not an abstraction. It was the principle (asl. but rather the principle illustrated by the case as well as other cases which constituted an illustration of how the principle is to be defined. and other types of relations involved in a particular case was to come to full circle. and interpretation of. Fiqh was a process of understanding.60 for there was no state in the first place. “Model Shurut Works”. usul) of the fiqh58 which mattered. This explains why Islam never accepted the notion of blind justice. moral.56 to the chief exception of family law. Individual opinions. 89–99. It did not apply equally to “all”.57 It was not the case that was important. material. nor was it the “legal effect” of stating the will of a sovereign that the Muslim jurists intended to accomplish in the first place. it was the study (ishtighal) and intellectual engagement (tahqiq. which is what the Arabic term literally and lexically means and what its technical and professional corollary implies.59 It was not a “solemn expression of the will of the supreme power of the state”. as a fully realised and realisable “law”. Their law was an interpretive project. 59 A definition of (Western) law. 60 Ibid. The fiqh as a shar‘i manifestation. Authority. delimited. given in Black’s Law Dictionary. It would be mistaken then to equate fiqh with law in the sense we use this term in modern contexts. would not be revealed until the jural principles meshed with social reality and until the dialectic of all human. structure. 795. social. articulated. had insisted on the “divorce” between “Islamic law” and social and political realities since the early third/ninth century. Each individual and circumstance was deemed unique. was no more that a juristic guide that directed the judge and all legal officers on the ground to resolve a situation in due consideration of the unique facts involved therein. The fiqh. distinguished from another group of cases that yield another cognate principle. very importantly. 58 Which is not to be confused with usul al-fiqh as a theoretical discipline. not the individual cases and opinions. It was the intellectual and hermeneutical work of private individuals. intended to understand all possible ways (aqwal) of reasoning on.
. strictly speaking. and it did not involve coercive or state power. refined. restricted. a mission requiring the legists to do what is right in a particular moment of human existence.168
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explains why legal Orientalism. Rather. but also religious and moral. moral values. an effort at mustering principles as located in life-situations. pp. which also explains why there was no point in stating the law in the sense we see in today’s legal codes. On the asl in fiqh. 1.
56 See the discussion about this “divorce” in Hallaq. the law was an ijtihadic process. Furthermore. It was not political in the modern sense of the word. whose make-up. p. even in its most detailed and comprehensive accounts. as I just intimated. What Orientalism took to be a divorce was really a state of affairs in which law as doctrine functioned in a particular social order. and yet not allowed to overlap with another. pl. which were more illustrative than prescriptive. 57 Ibn Abi al-Damm. and much else are only now being understood through the valuable efforts of legal anthropologists. a particular case. not “a body of rules of action or conduct prescribed by [a] controlling authority”. a continuously renewed exercise in hermeneutics.

it did so only in what is regarded as peripheral and marginal. See van Creveld. and tentatively co-existed with it in a state of contradiction. Thirdly. The two were systemically incompatible. The state. materially rich. and historically. This process was the fate of much “law”. institutionally. First. including its financially independent colleges and universities. To begin with. as opposed to substantial. with the state forces operating on it as well. juristic. the state – whether the colonialist or its native surrogate – came into sustained conflict with the Shari‘a. the Shari‘a had no chance. there is a fundamental conceptual contradiction between the state and Shari‘a as an institutional.What is Shari‘a?
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3 ENTEXTING THE SHARI‘A
If fiqh was not “law” in the sense modernity has come to construct notions of law. and the very jural environment that afforded Muslim legists the opportunities to operate and flourish as a professional group. then what happened and why has “fiqh” come to mean what it has never meant? At the risk of over-simplification. the first to undergo this process being “commercial law” and “penal law”. The raison d’être of siyasa (whose invocation must always presuppose and announce the
61 For an excellent account of the rise of the nation-state. administrative and bureaucratic competition. while the Shari‘a was tolerant of administrative competition. Another effect was the setting aside of much of the Shari‘a’s contents. government (siyasa) – the incomplete. But there remained a thin slice of “Shari‘a law” that survived in the civil codes of modern Muslim states. The dismantling finally led to the extinction of this group as a species. modernity: the state. what is now mistakenly seen as “positive law”. and certainly “stunted”. in theory as well as in practice. Thus. cultural. Among the effects of this confrontation – a grand term for such an unequal contest – was the desiccation and final dismantling of the Shari‘a’s institutional structures. Its staunchly centralised nature ab initio precluded any palpable tolerance of other systems. on the other hand – also judged by the very fact of its historical evolution –61 gradually developed even less tolerance to legislative. and as already intimated. again. I want to venture the statement that this transformation was the direct result.
. and at once defined. both systems claim ultimate sovereignty. both are designed to organise society and to resolve disputes that threaten to disrupt their respective orders – however different from each other these orders are. Conceptually. and judicial entity. that the meaning of fiqh was transformed into law. and in the fight against a highly militarised. and aggressively bureaucratic state. and more importantly. as well as the by-product. both are legally productive mechanisms. epistemic. “dealing” will mean different things in each case). Secondly. in that they provide the law or – in the case of the Shari‘a – the jural principles needed to deal with the social order (although. Rise and Decline. it was only thinly tolerant of substantive juristic intervention. And it was through this venue. Although the Shari‘a could and did accommodate a measure of intervention by the political sovereign. At least in juristic political theory. in the law. And it is due to the relative similarity in their function that they found themselves in a state of competition. of the confrontation between the Shari‘a and the most significant and weighty institution that emerged out of. equivalent of the modern nation-state – is subservient to the Shari‘a.

they did so to significantly different effects. unlike the punitive nature of the state which creates the citizen by subduing him along with society at large. 258–261. 250–251. but this was conformity to a pre-existing order. and to accomplish these goals. 139 ff. Discipline-cum-punishment is integral to. idem. the Shari‘a was a grass-root system. not above it (the most characteristic feature of the modern state). p. That legal sovereignty remained. whenever they were
62 Foucault. Put differently. in so far as I am aware. A nation-state without jural sovereignty is no state at all. By contrast. Its prescribed harsh punishments. p. and of the threat to use it. the father – and much less frequently the mother – of all. emanating from “professional” groups and legal institutions that were socially grounded. submissive to notions of order and discipline. not the other way round. pp. Finally. the shar‘i juristic order had no interest in the social order other than that of resolving disputes in the least disruptive manner to that order. “The Police and the People”. Intrinsic to its behaviour. remains one of the most valid generalisations about this legal system. Aside from the higher transcendental aims. the Shari‘a and the state operated in two opposing directions. whereas the former was demonstrably centrifugal. Leonard. For it assumed that the force of social and religious morality will guarantee conformity to the “law”. The state. see Khalid Fahmy. the Shari‘a mediated conflicts and arbitrated disputes in a constant effort to mend the ruptures in the social fabric. which presupposes submission and – more importantly – discipline. Obedience to the law. the modern nation-state. That the general goal of the Shari‘a has always and everywhere been to restore individuals – to the best extent possible – to their social positions. Fifthly. “Society Must be Defended”.170
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presence of the civil population) is to serve the interests of the law. Fourthly. The pulsing heart of the legal system lay in the midst of the social order. 344. “Foucault”. and productive. of both the modus vivendi and modus operandi of the nation-state). the centrality of the element of violence. that is. That the citizen has accepted – or has been conditioned into accepting – this right of the state is perhaps the most salient indicator of the success of its project.
. within the realm of the Shari‘a is a fact that hardly squares with the modern nation-state’s totalistic appropriation of this paramount form of sovereignty. in both theory and practice. the Shari‘a has not concerned itself with creating the national citizen. the social status quo. while the Shari‘a and the state shared the general goal of organizing society and adjudicating disputes. disciplining and punishing. Its educational and cultural institutions are designed to manufacture the “good citizen” who is respectful of the law. the modern state is systemically and systematically geared towards the homogenisation of both the social order and the national citizen. the latter compelling and pushing towards an exclusive and ultimate centre. in the definition of the nation-state. and a unique feature of. The resultant “good citizen” is one who can efficiently serve the state. pp. industrious. For the introduction of this apparatus to Egypt. 170–238. Foucault Reader. and to this extent it shares none of the features of the state in this regard. no state apparatus can exist.62 ergo. is then the prop upon which the state stands. not to a newly conceived project of social engineering (a typical project. is the only entity in human history that has arrogated to itself the exclusive right to exercise violence or to threaten with its use. Without the law and its tools of surveillance and punishment. it engages in systemic surveillance.

303–310. Its jural modus vivendi was codification. inefficient. being the raison d’être of the code. at 164. have come to replace “all previous inconsistent customs. thought of “Islamic criminal law” as unduly lenient. our second point above. intended to deter the forces of corruption which always translated into disrupting social harmony. namely. 306. Were an exception to be made. p. as we shall see in due course. “Codification in Modern Times”. at 303–304. pp.) The victory of the nation-state was not only one of displacing Islamic law. “to the point”. In other words. the limit was designed as a possible invocation against excesses whenever there was enough social force to call for the strict application of penalties. clarity.66 But the prime attribute of the code is its capacity to create uniformity. pp. including its reformers. But it seems also true that. its prescribed penalties represented the highest limit beyond which human conduct could not go. it is always on terms dictated by state law. The most essential feature of the code is the production of order. (This perhaps explains. put differently. It was held a virtue that the “French and German Civil Codes could be held within the boards of a volume while the common law required a full library” to house it. 161–191. rather. 66 Stone. according to Stone (“Primer”. “A Primer on Codification”. It is.
. acknowledges that codification is a tool of the state. and law”. among other features. permitting the co-existence of other forms of (pre-existing) law. And when they are permitted to come to effect. “to state the law clearly and concisely”. concision and authority. 303–304).65 In their very nature. he says. since codes must also fulfil the requirement of completeness and exclusivity. hence their conciseness.63 Modern codes. arranged rationally and logically. an
63 Stone. 64 Bayitch.64 This replacement is also totalistic. a deliberate choice in the exercise of legal and political power. a healthy population of prostitutes). a method that entails a conscious harnessing of a particular tool of governance. over and above all previous law. among others. This did not mean that punishment was applied wherever an infraction took place (which explains why every large Middle Eastern city boasted. why the British colonialists. it is by virtue of the very permission granted by the code that such laws are allowed to exist. They must comprehensively cover the area they claim to regulate. harks back to a single function of codification. they are not only declaratory and enunciating of their own authority. whether it is the particular case or a particular human being. an act that perforce precludes both the substantive application and – equally significant – the authority of any competing law. 65 This. and deliberately preclusive of the concrete. and rendered easily accessible to lawyers and judges. they are always abstract. The state confronted the Shari‘a as a purely legislative entity. a choice that at once accomplishes a multitude of tasks. but also universal in the statement of rules.What is Shari‘a?
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applied (and mostly they were not). “Primer”. were conceived of as exemplary. but all this. and conducive neither to the propagation of discipline nor to the imposition of “law and order”. mores. lacking in punishments. the legal experts agree. as well as a means to effect a “new economic and social order”. Nor is this all. because the Shari‘a never constituted part of a machinery of coercive justice. not the other way around. Codes must be systematic and clear. They pay no attention to the individual. but also one which entailed the reordering of the Muslim social and legal orders. As an enhancement of this feature. pp. modern codes always claim exclusive and superior authority.

where the “entexting” of fiqh first occurred – where. the Shari‘a cannot be claimed to have internal uniformity. Chapters 5–6. codes must create uniformity not only within themselves. runs counter to the great majority of the code’s attributes. how this rigidification came about.69 This plurality. It is on the diversity of its own character that. through variant legal norms. there was no need for an abstract and universalising language. the example of British India. ran counter to the spirit of uniformity. interestingly. since plurality of opinion – the so-called ijtihadic pluralism – is its defining feature par excellence. The sway of the code’s authority therefore over-extends its own definition and encroaches upon the administration and implementation of justice. displayed the
67 See Bayitch. “Obvious” in the sense that India. On the contrary. First. codification (in the widest sense of the word). for instance. And since its interest lay in the individual as a singular worshipper of God. it is the declaratory nature of the code. in obvious ways. 162–167. centralisation. though. I choose to deploy the case of British India because it illustrates. but also in their application. that is. “Codification”. it depended on the cooperation of customary and royal law. that betrays a will-to-power emanating from the higher offices of the nation-state. The discolouring agents (or properties) were. and it is in this diversity that it found the flexibility to accommodate. bureaucratisation. In fact. These conceptual oppositions.172
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attribute subsidiary to the universal modern condition as an uncompromisingly homogenising one.
. in the Shari‘a such a will-to-power could not exist on any level beyond the purely abstract and theoretical (if not the metaphysical and theological). all of which constituted the backbone of the modern state project. the Shari‘a did not lay any claim to exclusive authority. by contrast. 69 Hallaq. among others. it thrived (and insisted). but was judged necessary for the proper operation of the Shari‘a. Nowhere did the Shari‘a operate exclusively. custom was not only to be taken into consideration. any surviving conception of the Shari‘a. Nor. although this theory remained wishful thinking.67 The Shari‘a. Most importantly. for history is written by the victor. since homogenisation was largely absent from its agenda. perhaps because it was gripped by direct forms of colonialism. as well as its uniformity of substance and legal effect. This also explains why it was to the civil codes of Western Europe – and not to the English common law – that the Afro-Asian reformers turned. Take. in this connection. pp. The plurality of opinion answered not only the multiplicity of particular and special situations but the exigencies of legal change. and jural homogenisation. however. were bound to colour (or discolour). and everywhere customary law was entwined with it in the realm of practice. was the Shari‘a declaratory. And they all operated in tandem against all opposing forces. different situations that would otherwise have “blindly” come under the same codified rule. 68 In theory it may be said to have done so. Authority. in that it never in practice68 pronounced itself as the bearer of exclusive authority that had come to replace others in the field. The (dis)colouring was a complex process that operated at nearly every level in the uneven relations between colonialist modern Europe – the creator of the modern state – and Muslim societies around the world. combined with the state’s effective victory against all Sunni legal institutions. by the force of hegemonic discourse. the fiqh was fixed into texts as an act of codification. on the other hand. Thus. Admittedly.

Anderson. 69. forthcoming). 74 Cited in Cohn. For it was not long before he commissioned the translation of Marghinani’s fiqh work. pp. “Islamic Law and English Texts”.73 And in order to deal with what was seen as an uncontrollable and corrupted mass of individual juristic opinion. p. after consulting their pandits and mulavis. 62. At the lowest rung of judicial administration stood the runof-the-mill Muslim judges who administered law in the civil courts of Bengal.74 The justification for the creation of such an alien system within Islamic (and Hindu) law was articulated in a language that problematised this law by casting it as unsystematic. understood that law.75 Hastings appears to have been as impressed by Jones’s proposal as by the cultural and legal assumptions on which they were based. and Kugle. 73 On William Jones’s own suspicions. 75 Ibid. the Oxford classicist and foremost Orientalist.72 features that reportedly led the British to gradually phase out these indigenous experts of which they grew increasingly suspicious. say. The former. Madras. in all its aspects. Hastings’s tax collectors also doubled as chief justices of two types of court: the Diwani and Faujdari. the legal transformations of British India are therefore prototypical of the changes that took. 71 Singha. Sir William Jones (1746–1794). applying “Islamic law” to Muslims and “Hindu law” to Hindus. and mostly arbitrary – attributes that were to be much later elaborated in a virtuoso sociological typology by no less than Max Weber himself. a
70 On the jural transformation of both British India and the Ottoman Empire. place elsewhere in the Muslim world. Islamic Law in History and Practice (Cambridge: Cambridge University Press. into Persian. Hindu Law. Despostism of Law. seconded by a tier of British judges who would consult with local qadis and muftis (mulavis) with regard to issues governed by the Shari‘a. 74. with criminal jurisdiction. applied “Islamic law” in the way these collectors.
. p. “Legal Scholarship”. British) jural ideals. proposed to Hastings the creation of codes or what he termed a “complete digest of Hindu and Mussulman law”. see Strawson. Blamed and Renamed”. and still are taking. 71 These magistratescum-collectors are said to have been stricken by both the staggering variety of opinions and the pliability of Islamic (and Hindu) law. “Framed. 72 See generally Menski. (It was probably Jones’s idea of an undisciplined and uncontrollable legal interpretation of the Mussulmans’ magistrates and mulavis that gave Weber – and the entire field of Orientalism before Weber – his burlesque notion of Kadijustiz. The plan also rested on the assumption that local customs and norms could be incorporated into a British institutional structure of justice regulated by “universal” (viz. which in part shaped Jones’s ambition to construct a system that offers “a complete check on the native interpreters of the several codes”. 67. Colonialism and its Forms of Knowledge. al-Hidaya. was a civil tribunal but also charged with the task of tax levy. “Legal Scholarship”. Colonialism and its Forms of Knowledge. 1–35. than any other directly colonised subject. and Bombay. the Ottoman Empire. The latter. The (Warren) Hastings Plan of 1772 conceived a multi-tiered system that required exclusively British administrators at the top. although the latter was no less affected by hegemonic modernity. 36–37.. inconsistent. see Hallaq.What is Shari‘a?
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processes and effects of crude power and hegemonic discourse more clearly than.) The challenge thus represented itself in the question of how to understand and legally manage native society in a fiscally economic manner.. Anderson. p.70 In their major features. p. 69. pp. Cohn. p.

A year later. for by severing it from its interpretive and commentarial tradition. it merely stated what Marghinani thought. the
76 Al-Sirajiyah or the Mahomedan Law of Inheritance (Calcutta: The Sanskrit Press. It was authored by one of the most esteemed jurists in the Hanafite school. Authority. until it was translated. see Strawson. heuristic use as a peg for commentarial jurisprudence.76 This treatise on inheritance was adopted in translation to compensate for the silence of the Hidaya on this important branch of the law. 1861). F. namely. 77 On omissions from the translated text and on its later use in colonial education. what is law. Principles of Moohumudan Law (Calcutta: Brahma Samaj Press.77 The choice of the Hidaya was not fortuitous. “Islamic Law and English Texts”. the “codification” of the Hidaya (and through it.
. It did not sum up the doctrine of the school. and Elberling.. By making the text available to the British judges. but rather in the fact that it afforded an authoritative basis and a convenient platform on which to compile the numerous commentaries that emerged throughout the centuries to come. Gift. to be the commonly practised and accepted doctrines of the school (common acceptance and practice of a doctrine being constitutive of epistemic and juristic authority). these Muslim legists were eliminated as jural middle-men. 121–165. leaving the British with the sole power and prerogative to decide. Thus. intrinsic virtues. pp. A Treatise on Inheritance. 1861). important as a commentarial substrate as well as a madrasa textbook – although even in this latter function it also required the professor’s commentary. Will. 1832). to curb the judicial discretion of the qadi and. to which adhered the great majority of India’s Sunnite Muslims.174
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translation that Charles Hamilton in turn used for his own translation (1791) into English. in his own era and region. The translation of the Hidaya amounted in effect to its codification.78 The importance of the Hidaya in the Hanafite school did not lie in its own. To cite it. the distinguished author-jurist. it was therefore far less important than what the British appeared to assume. and Marriage (Calcutta: Baptist Mission Press. 78 Hallaq.H. Sale . much less its range. Furthermore. in the name of the Shari‘a. In and by itself.. saw it. The Hidaya was and remained. it was thought. And it is precisely here where the usefulness of this text lies. 27–28. Its brevity reflected the authoritative doctrine of the Hanafite school as Marghinani. Two more translations on inheritance appeared in subsequent years: Macnaghten. this time directly from the Arabic. for their formal use of it qualitatively differed from its nativist. it was not the Hidaya as a legal text. of Shari‘a’s personal status at large) served at least three purposes: First. the mulavis and muftis who assisted the courts. Jones himself translated al-Sirajiyya. Thus. pp. Secondly – a further step toward totalistic control – the act of translation-cum-codification represented a replacement of the native system’s interpretive mechanisms by those of English law. it ceased to function in the way it had functioned until then. In so far as application of the law was concerned. it was the briefest authoritative manual of Hanafite law that could approximate the size of a code. The elimination of these middle-men also represented the elimination of an independent jural class (the historical ‘ulama’/jurists) which no modern state can tolerate. more specifically. might be the most effective way of reducing to silence any juristic objection. it was the commentary as a hermeneutical project (if not process) that was the practical judicial desideratum. it accomplished what the British had long aimed at. W.

made a correction since the early 1990s. We see them as wild animals infesting the country in which we happen to come across them. namely. By definition unwritten.79 terms that carried highly pejorative and condescending connotations. “Framed. Legal Pluralism. at once. p. The impact of the translations on the administration of justice was not to take effect until the beginning of the next century. p.
. as part of the local flora and fauna and not as men of like passion with ourselves. 15. which was not only multifarious but essential to the smooth functioning of the law. Blamed and Renamed”. Glenn. on yet another level. to streamline if not homogenise the otherwise complex and complicated jural forms with which the British had to deal. also see Kugle. and was consistently described as “primitive. The adoption of the Hidaya as both a summary and a code of personal status represented for the British the equivalent of a nation-state’s legal decree that was to apply by virtue of that state’s will-to-power. for. “Islamic Law and English Texts”. to deprive the Shari‘a. of one of its props: the communal and customary laws that were entwined with the Shari‘a on the level of application.80 Stamping out custom was intended. but to
79 See Hooker. the translations engendered not only the notion of an “essentialist.81 Orientalism thus made it clear to itself as well as to the newly transformed – Orientalised – Muslims that Islam can and should be understood and analysed through texts. but the Muslims’ reading of their own history remains within the epistemic framework of the Orientalised and Textualised Orient. both the interpretive process that constituted the heart of the Shari‘a.” See his A Study of History. static Islam incapable of change from within”.What is Shari‘a?
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seemingly innocuous adoption of the translation and its integration in the system of Anglo-Muhammadan law amounted in effect to depleting. Fisch. sociological. the very act of creating a “fiqh-code” had the effect of stamping out customary law. p. This way of thinking was perhaps best explained by Toynbee who averred that “[w]hen we Westerners call people ‘natives’ we implicitly take the cultural colour out of our perception of them. but we do not begin to understand them. Legal Traditions of the World. and the sociological knowledge that produced this process.. and. first. (It is noteworthy that Orientalism has. p. pp. and secondly.)82 The translation and codification of the Shari‘a must thus be seen as causally linked not only to the production of the so-called Anglo-Muhammadan law. or “native”. but also created and promoted the fundamental discursive practice of all classical Orientalism. if not decimating. Strawson. But this is obviously not the place to discuss them. and worldly experiences of the law and the social order in which it functioned. customary law did not qualify for the same status of written law. domesticate them and honestly (perhaps not altogether mistakenly) believe that we are improving the breed. So long as we think of them ‘natives’ we may exterminate them or. 36. 80 The British attitude to unwritten law represented a microcosm of the general European attitude to colonised cultures. 56–57. 74. But they served an immediate epistemological function in the colonialist articulation of Islam. in this respect. 26. not through the human. pp. “traditional”. although it has developed problems of its own. as is more likely to-day. that a proper understanding of India and the Orient “could not be had without a detailed study of the classical legal texts”. “Law as a Means and as an End”. Thus the very act of translation drove the Shari‘a from its interpretive juristic soil. 119 ff.” “tribal”. as Michael Anderson insightfully averred. from the native social matrix in which it was embedded and on which its successful operation depended. p. 82 A transformation that signals an advance in our knowledge. Thirdly. 258–259. 81 Anderson. Volume I.

the Anglo-Muhammadan lawyer and judge now looked to the higher courts. in morals and in intellect. the obligation of courts to follow the uncontroversial previous judicial decisions of higher courts. All this is a necessary but not sufficient condition for “entexting” the Shari‘a and its fiqh. pp.
. That the highest source of legal and political power was later to revert to New Delhi. As Thomas Macaulay (a member of the EIC’s ruling council) declared. 170–174. Ijtihadic hermeneutics was the very feature that distinguished the Shari‘a from modern codified legal systems. as would happen in the British court. while possessing more or less the same amount of legal knowledge as did his British counterpart. Persia. they would subsequently disappear from the legal as well as intellectual life of the jural community – as indeed happened. a feature that permitted this jural system to accommodate and reign supreme in cultures and sub-cultures as varied as those which flourished in Java. English in taste. see Hallaq. and all countries in between. The Shari‘a assigned legal expertise and. and Algiers should not. nay. “Indian in blood and colour. Madagascar. the statement was and remains prophetically accurate. it was ineluctable that not only the native agency had to be suppressed at any cost. more importantly. the bindingness of a ruling according to the specifically British doctrine of precedent deprived the qadi of a wider array of opinions to choose from in light of the facts presented in the case. was deemed – as qadi –85 insufficiently qualified to “make” law.
83 See Macaulay’s “Minute on Indian Education” (2 February 1835).84 not to the qadi who. The transformations were both structural and permanent. 85 On the epistemic authority of the qadi as qadi. and “Modern” for “English”. but for a good reason did not. the aim of the British was to foster a group of educated men. epistemic authority to the mufti and author-jurist. alter the effects of modernizing colonialism. and in fact did not. and these in turn looked to the Privy Council which sat in London. 84 Two distinct juristic roles. This system could have evolved in Islam. But in so far as judicial practice was concerned. Authority. Enshrining Anglo-Muhammadan law in a doctrine of stare decisis in effect transformed the sources of legal authority altogether (and the Indian experience is both an epitome and a prototype of the structural transformations that were to take place in all legal systems across the Muslim world). Morocco.176
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the very colonialist notion that to govern India (or any other territory) meant having to change its jural modus operandi. Once a determination of law in a specific case was made binding. 166–235. Instead of calling upon the school (madhhabic) principles and the juristic authorities whose props were the dialectics of textual sources and context-specific social exigencies. Authority. Kuala Lumpur.”83 It would in no way be an exaggeration to say that with the substitution of “Muslim” for “Indian”. Another rigidifying process was the conversion of the Shari‘a court into a body that operated on the principle of stare decisis. but a new and “improved” local (but not necessarily native) agency had to be cultivated. pp. And to do so. not Delhi or Bombay. discussed in detail in Hallaq. the otherwise unceasing hermeneutical activities of the Muslim mufticum-author-jurist would have no place in judicial life. in opinions.

namely.
The cultural effects of colonialism have too often been ignored or displaced into the inevitable logic of modernisation and world capitalism. administrative.
. Instead. the transformation into this new reality not only represented a metamorphosis but also announced the demise of the Shari‘a and its fiqh as Muslims knew and lived them until two centuries ago. the utilisation of a weapon without which the first two transformation would not have been possible. See the informative analysis of Bauman. Colonial knowledge both enabled conquest and was produced by it. and cultural powers. namely. of malleability through plurality and jural relativism. it was the channelling out to the non-European world a mass of such technologies that sustained and strengthened British – and other – jural colonialism. An extreme case of this “social engineering” amounted to a process of "weeding” the “garden" of the state. where they become a “solemn expression of the will of the supreme power of the state”. moral. Yet.87 The case made here pertains to the appropriation and fundamental epistemic transformation of the remnants of this process. the codified fiqh (and by extension the “reading” of fiqh as a genre) has joined the machinery of the bureaucratic state in performing the essential functions for which the latter was created to accomplish in the first place. Modernity and the Holocaust.59–60. and other exigencies. of relevance – nay connection – to a type of moral community that no longer exists. but more than this. was the gradual but effective demolition of the traditional legal and other institutions and their near-simultaneous replacement by European models. but less obviously elsewhere). centralising. As Nicholas Dirks poignantly observed. the Shari‘a and its fiqh were severed from their socio-epistemic infrastructures. a deformed re-enactment that is deprived of juristic life. p. social engineering. I have discussed the institutional causes of this demise. it has not been sufficiently recognised that colonialism was itself a cultural project of control. And thirdly. above. Elsewhere. homogenising. The fiqh was thoroughly taken out of its own substrate of sociological knowledge that had earlier guaranteed the integrity of legal production.89
86 87 88 89 See the introduction of Nicholas Dirks to Cohn’s Colonialism and its Forms of Knowledge. “Can the Shari‘a be restored?’ See nn. through processes of entexting Islamic legal doctrine (nicely illustrated by the experiment in British India. ix. military. of reasoning and an inner. enshrining the remains of fiqh in the civil codes marks the final sanction that interred these remains in the soil of the state. For without these technologies neither Anglo-Muhammadan law nor its successors could have been possible. that of cultural technologies. Secondly. organic hermeneutic. Hallaq. in all its jural.What is Shari‘a?
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4 CONCLUSION
The transformations we are speaking of here were structural and deep because they achieved at least three goals that colonizing modernity had set for itself: first. Whatever fiqh was left enshrined in the civil codes of modern Muslim countries is a stunted version of its predecessor. bureaucratic.86
The integration and final transformation of fiqh into a code-like genre is wholly attributable to the successes of modernity.88 Whereas the fiqh once was wholly geared to maintaining social harmony and confirming existing moral settings. including the production of juristic multiplicity and plurality of judicial meanings that catered to local social.

Khalid.F. 65–91. Y..178
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This transformation. 2004). Minn. Islamic Law and the Challenges of Modernity (Walnut Creek: Altamira Press. and Stowasser.H. 1997). ——. New Jersey: Princeton University Press. Civil Law in the Modern World (Kingsport: Louisiana State University Press. “Law as a Means and as an End: Some Remarks on the Function of European and Non-European Law in the Process of European Expansion”. R.). pp. 161–191. ——. 1999). 1984). whose thrust diametrically counters the very spirit and soul of fiqh. Fahmy. “Society Must be Defended” (New York: Picador. pp. Patrick H. in P. 511–584.J.). 1965).. is one of staggering proportions.A. 83–113. “Legal Scholarship and the Politics of Islam in British India”. the Islamic Judge. (Ed.S. 455–467. pp. then what is the meaning of the current Muslim call to restore the Shari‘a?
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